Five bi-national married couples filed suit Monday in New York against the 1996 Defense of Marriage Act, arguing that the law denies gays and lesbians the right to petition for permanent residence, as heterosexual couples are allowed to do. The suit argued equal protection grounds.
The quandary facing such couples got national attention in the case of a San Francisco couple, Bradford Wells, a U.S. citizen, and Anthony John Makk, a citizen of Australia. Makk faced deportation but got a reprieve after House minority leader Nancy Pelosi, D-San Francisco, intervened in their case. Others are not so fortunate.
Another Bay Area couple, Brian Willingham and Alfonso Garcia, have argued that the Obama administration is “still aggressively enforcing DOMA” despite administrative guidance to use “prosecutorial discretion” in enforcement against gay and lesbian bi-national couples. Garcia was brought to the United States as a child and has lived in the Bay Area for 21 years.
That may be changing, however. At a March 22 hearing last month in San Francisco, , Willingham said in an email Monday, “something sort of historic happened. The judge decided to treat us the same as any other married couple in the same situation. As soon as Judge Hoogosian learned that I had filed a green card petition for my husband, and that USCIS was still in the process of reviewing that petition, she decided to postpone the deportation hearing for seven months.” The government attorney did not object. If the couple’s green card application is not approved, Willingham said they will be asking the government to put the application on hold until DOMA is settled.
The Republican-led House continues to defend DOMA in court, after the Obama administration refused to do so last spring. Pelosi on Friday criticized House intervention in the case of Cooper-Harris vs. U.S., in which an army veteran and her same-sex spouse are challenging the denial of VA spousal disability benefits.
Former Solicitor General Paul Clement is arguing now 12 DOMA cases on behalf of the House on a $1.5 million contract.
In the immigration case, the plaintiffs argue that “Solely because of DOMA and its unconstitutional discrimination against same-sex couples, these Plaintiffs are being denied the immigration rights afforded to other similarly situated binational couples.” Were the Plaintiffs opposite-sex couples, the suit says, “the federal government would recognize the foreign spouse as an ‘immediate relative’ of a United States citizen, thereby allowing the American spouse to petition for an immigrant visa for the foreign spouse, and place [them] on the path to lawful permanent residence and citizenship.”
The pro-gay Williams Institute at UCLA estimates that there are 28,500 binational same-sex couples and nearly 11,500 same-sex couples in which neither partner is a U.S. citizen raising nearly 25,000 children. Not all are married.
This article originally appeared on: http://blog.sfgate.com/nov05election/2012/04/02/gay-and-lesbian-couples-file-doma-suit-in-new-york/Older postNewer post